Memos Reveal War Crimes Warnings: Could Bush administration officials be prosecuted for 'war crimes' as a result of new measures used in the war on terror? The White House's top lawyer thought so.
By Michael Isikoff
Updated: 9:14 a.m. ET May 19, 2004
May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.
The concern about possible future prosecution for war crimes—and that it might even apply to Bush adminstration officials themselves— is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.
In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners—was "undefined."
One key advantage of declaring that Taliban and Al Qaeda fighters did not have Geneva Convention protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote.
"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote.
The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision—then being strongly challenged by Secretary of State Powell— to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.
"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.
The memo—and strong dissents by Secretary of State Colin Powell and his chief legal advisor, William Howard Taft IV—are among hundreds of pages of internal administration documents on the Geneva Convention and related issues that have been obtained by NEWSWEEK and are reported for the first time in this week's magazine. Newsweek made some of them available online today.